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T-7558-82
Paul Thomas Bryntwick (Petitioner) v.
Donald Yeomans, Commissioner of Penitentiaries for Canada and René Rousseau, Director of the Leclerc Institution (Respondents)
Trial Division, Walsh J.—Montreal, September 27; Ottawa, October 1, 1982.
Penitentiaries — Body searches — Visitor refusing to submit to nude search — Visitation rights suspended — Demand for search unfair and against Regulations — Nerv ousness of visitor not "reason to believe" she had contraband in her possession — Suspension order set aside upon petition for certiorari — Penitentiary Service Regulations, C.R.C., c. 125!, s. 41(2), as am. by SOR/80-462.
Judicial review — Prerogative writs — Certiorari — Peni tentiaries — Petition to set aside order suspending visitation rights of petitioner's common law wife — Latter refusing to submit to strip search — Whether certiorari proper remedy — Regulations not complied with as no credible and justifiable reason for visitor to be searched — Duty to act fairly notwith standing decision administrative — Certiorari granted — Pen itentiary Service Regulations, C.R.C., c. 1251, s. 41(2), as am. by SOR/80-462 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a petition for writ of certiorari to set aside an order suspending the visitation rights of the common law wife of the petitioner, an inmate at the Leclerc Institution. The woman was asked to submit to a nude search on the ground that she appeared nervous. When she refused, her visitation rights were suspended for three months. The petitioner argues that the demand for a search was contrary to the Penitentiary Service Regulations in that there was no "reason to believe" that she had drugs or contraband in her possession.
Held, petition granted and order suspending visitation rights set aside. The discretion in ordering searches was broadened when the words of the Regulation were changed from "sus- pects, on reasonable grounds" to "reason to believe" that a visitor has contraband. Nevertheless, unrestricted body searches are still not permitted. The Regulations were not complied with because there did not exist a credible and justifiable reason, with reference to the specific visitor, to be searched. The nervousness of the visitor was not a sufficient reason, particularly since it was explained by the imminent death of her mother, of which the Institution was aware. There is a duty to act fairly in the circumstances notwithstanding the administrative nature of the decision and that duty may be enforced by the Trial Division through the remedy of certiorari.
CASES JUDICIALLY CONSIDERED APPLIED:
Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Mar-
tineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Gunn v. Yeomans et al. (1979), 48 C.C.C. (2d) 544; 104 D.L.R. (3d) 116 (F.C.T.D.); Gunn v. Yeomans, et al., [198I] 2 F.C. 99 (T.D.).
DISTINGUISHED:
In re Penitentiary Act and in re Culhane, Federal Court, T-2168-77, judgment dated October 6, 1977; State of Hawaii v. Martinez, 580 P.2d 1282 (Sup. Ct. Hawaii 1978).
REFERRED TO:
Martineau et al. v.- The Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118.
COUNSEL:
Pierre L. Paquin for petitioner. S. Barry for respondents.
SOLICITORS:
Brunet, Paquin, Danis & Brunet, Montreal, for petitioner.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
WALSH J.: This is a petition for writ of certio- rari by the petitioner, an inmate of the Leclerc Institution, a minimum security prison in Laval in the Province of Quebec who, before his imprison ment, had lived for a number of years with his common law wife, Francine Allard. On July 11, 1982, she paid him a visit at the Leclerc Institu tion as she had been doing regularly during his imprisonment but, after being admitted to the Institution on this occasion she was asked to submit to a nude search which she refused, as a result of which she was escorted outside the prison grounds, access being refused to her. Moreover, she was advised that her right of visitation was suspended indefinitely from that date.
The petitioner alleges that nude searches are required for persons visiting a prisoner whose name appears on a list of prisoners who are sus pected of introducing contraband or drugs into the penitentiary. The petitioner's name has never been on this list prepared by the security service of the penitentiary and he has never been suspected, nor have his visitors, of having introduced contraband or drugs. The petitioner alleges, therefore, that there is no reasonable and probable motive for believing that Mrs. Allard would do so, so as to
justify the nude search. It is alleged that by virtue of the Regulations and Directives nude searches can only be made when there is reason to believe that the person to be searched has in her posses sion drugs or contraband and, without this reason able and probable motive, such a search is illegal and unjustified and in excess of jurisdiction. By virtue of the Regulations and the law the petition er has a right to visits from his common law wife for purposes of his rehabilitation and that the indefinite suspension of such right is excessive, abusive and disproportionate and is an illegal pun ishment. It is further alleged that an enquiry was held and that he was not heard or permitted to make any representation which is contrary to the pinciples of natural justice, and that the only remedy which he has is by way of certiorari.
The affidavit of Mrs. Allard sets out that the matron in the office of the security service of the penitentiary did not, at the time, give her any reasons for submitting to a nude search.
On July 16, 1982, after consulting his attorney, the petitioner wrote a letter to Mr. R. Rousseau, the Director of the Institution. In that letter he pointed out that he had been informed that his name did not appear on the said list nor was he suspected of dealing or introducing contraband or drugs into the Institution. He alleges he was informed that what occurred was a spot check undertaken by members of the personnel involved on their own initiative.
The petitioner further states in the letter that his own institutional record of 36 months is irre proachable and his wife's character and back ground is unimpeachable. She had formerly been a journalist, a public relations department employee of a Cégep and a school teacher until her mother fell seriously ill some four years before.
Reference is made to the Penitentiary Service Regulations, C.R.C., c. 1251, subsection 41(2) which formerly read as follows:
41....
(2) Where the institutional head suspects, on reasonable grounds, that an officer, employee, inmate or visitor to the
institution is in possession of contraband he may order that person to be searched, but no such person, who is female, shall be searched except by a female person.
By Order in Council 1638 of June 19, 1980' it was amended so as to read:
41. ...
(2) Subject to subsection (3), any member may search
(a) any visitor, where there is reason to believe that the visitor has contraband in his possession, and if the visitor refuses to be searched he shall be refused admission to or escorted from the institution;
The petitioner contends, and I agree, that this does not, in itself, authorize a spot check. In any event the respondents do not contend that the request to search Mrs. Allard was in the nature of a spot check, but rather because according to the matron who requested the check she "appeared nervous" on the day in question.
The letter further alleges that the mother of his common law wife, Mrs. Allard, is dying from cancer and the situation was now so critical and stressful that his wife herself had come under medical supervision, which would account for her nervousness. The officers in question who ordered the search could not, of course, be expected to know this, although on July 7, 1982, (4 days previously) the petitioner had applied on humani tarian grounds for temporary escorted absence because of the terminal illness of his wife's mother, and the need to tactfully discuss, among them selves, pre-arrangements for her final wishes which his wife could not herself emotionally handle at that time. The name of the attending physician was given and the application points out that further information can be obtained from Mr. André Harvey who conducted the community assessment at his home and is aware of the situation.
The Commissioner's Directive No. 249(6) of April 30, 1982, defines strip search as follows:
... strip search - is a procedure which requires a person to undress completely and be searched visually but not touched except for head hair. In addition, all clothing and possessions are searched.
1 SOR/80-462.
Paragraph 21 reads as follows:
21. A member may frisk search or strip search any visitor where there is reason to believe that the visitor has contra band in his possession. If the visitor refuses to be searched, where offences under the Narcotic Control Act, Food and Drugs Act and Criminal Code of Canada are suspected, he may be turned over to local law enforcement authorities.
Paragraph 25 reads:
25. Except as provided for in paragraph 21., a visitor who refuses to submit to any type of search, when requested, shall be refused admission to or be escorted from the institution property.
On July 20, 1982, the petitioner's attorney wrote a letter to Martin Paquette, Chief of Social De velopment of the Institution explaining the situa tion and the reason for Mrs. Allard's apparent nervousness and requesting that the right to visits be reinstated. On July 23, the Director of the Institution, Mr. René Rousseau, in reply to this letter states that permission to enter the establish ment was taken away from Mrs. Allard because of her refusal to permit a nude search, and that such a refusal is sufficient reason for denial of access for three months minimum after which a new request for admission can be studied. In a letter of July 26, 1982, Mr. Rousseau points out that a denial of admission resulting from a refusal to be searched is not a suspension of visits but a refusal of admission for a minimum of a three-month period, and that this should not be confused with the right of search which is made in accordance with the Commissioner's Directives as well as the Penitentiary Service Regulations. He adds that he does not see why the petitioner's visitor should be exempted from search because of his good behav iour or because his name is not on a special list.
On August 13 the petitioner's attorney wrote a letter in the form of a mise en demeure to restore the right of visitation to Mrs. Allard within five days, said letter being addressed to Mr. Rousseau, to the Attorney General of Canada, the Honour able Robert Kaplan and to Donald R. Yeomans, Commissioner of Correctional Service of Canada.
After the service of the petition and immediately prior to the hearing, an affidavit was submitted on behalf of the respondents by Jean-Marc Lavoie, Associate Director of Socialization at the Leclerc Institution, taken in the absence of Mr. Rousseau.
He states, inter alia, that in recent years the use of drugs in the Institution has been observed despite the most careful measures to prevent their intro duction, that Mrs. Beaudin, the matron requesting the search, is one of the most experienced officers in the Institution and that it was her responsibility to decide whether to request the nude search or not, that Mrs. Allard's refusal to submit to it resulted in the suspension of her privileges, that subsequently, a full study was made of the incident and the administration reached the conclusion that the matron's decision was not unreasonable, that she had reason to believe that the visitor was a carrier of contraband, that the decision was not discriminatory nor abusive, and that it was taken bearing in mind the maintenance of the organiza tion, the discipline and the efficiency of the Cor rectional Service.
Before the amendment to subsection (2) of sec tion 41 of the Penitentiary Service Regulations (supra) I had occasion to examine the question of the right to strip search a prisoner against whom no specific suspicions of the introduction of contra band was suggested, when he was leaving the prison temporarily for medical treatment. In granting an interlocutory injunction restraining further searches of the plaintiff's person, except those in accordance with Regulation 2.31(2) (now 41(2)) of the Regulations, I had this to say [at page 5491: z
The Regulation, s. 2.31(2) is, however, so worded that the institutional head must suspect "on reasonable grounds" that the "inmate ... is in possession" of contraband before he may order "that person" to be searched (emphasis mine).
It is trite to say that there may be some suspicion, even perhaps "reasonable" suspicion, that inmates generally may be in possession of contraband at any given time—experience in prisons so indicates. The Regulation, as drawn, would appear to require specific suspicion of a given individual "on reasonable grounds" before he may be searched. The word "inmate" is used in the singular, the Regulation uses the word "is" in possession not "may be" in possession, and the order is that "that" person be searched. It would in my view require stronger wording to justify a general body search of the type indicated of all inmates on leaving or entering the institution, however desirable, useful, or even necessary such a search may be. If greater powers of search are necessary, as they may well be, then the Regulation should be amended to provide for this.
2 Gunn v. Yeomans et al. (1979), 48 C.C.C. (2d) 544; 104 D.L.R. (3d) 116 (F.C.T.D.).
At a later stage in this same case my brother Cattanach J. had occasion to find that the Com missioner's Directive respecting such searches inconsistent with the provisions of subsection 41(2) was unlawful and that therefore the conviction of Gunn on the charge that he failed to obey a lawful order to submit to the strip search was wrong in law and must be set aside, and furthermore that the defendants were enjoined from conducting or otherwise carrying out any searches of the plain tiff's person except in accordance with subsection 41(2) of the Penitentiary Service Regulations.' The judgment of Cattanach J. stated at page 110:
He must suspect, on reasonable grounds, that the inmate to be searched is in possession of contraband as a condition precedent to ordering the search.
While the institutional head might be justified in holding the suspicion that each and every inmate who leaves the institution and returns thereto on temporary, but authorized, absences is likely to be carrying contraband I do not think that such suspicion is held on reasonable grounds with respect to a particular inmate. The suspicion must be specific and not a suspicion generally held.
It was as a result of these judgments that the Penitentiary Service Regulation was amended and reads as it now does (supra) so as to use the words "reason to believe" rather than "suspects, on reasonable grounds".
While this undoubtedly broadens the discretion given to the prison authorities it is evident that even under the new wording unrestricted body searches would not be permitted. There has to be a reason for requiring the body search, and it is my view that despite the amendment, the reason in itself must be, if not "reasonable", at least credible and justifiable with reference to the specific visitor to be searched, since to interpret the amended section otherwise would result in an unrestricted right to require a body search of each and every visitor on the sole unrestricted discretion of a matron or officer who happens to be on duty when the visitor seeks admittance. Such a reason does not seem to exist in the present case since the only reason given, and this after the event, by way of justification was that the visitor appeared nervous. Many visitors visiting a penitentiary may exhibit signs of nervousness and, in the present case, a
3 Gunn v. Yeomans, et al., [1981] 2 F.C. 99 (T. D.).
reasonable explanation has been given as to Mrs. Allard's personal family problem which might well have accounted for her nervousness. While it is true that the matron was no doubt unaware of this (although the prison authorities had some knowledge of the family situation 4 days before) it appears very tenuous to justify a body search which is a humiliating and degrading procedure on such a flimsy excuse. It is evident that the Regula tion, even .as amended, would not justify spot checks although they might well be very desirable from the point of view of prison administration. While, as Mr. Rousseau points out, the fact that a prisoner himself is well conducted and has had no history of receiving contraband does not in itself indicate that a visitor might not seek to introduce same, whether for his use or for the use of other prisoners, Mrs. Allard had been a frequent visitor of the petitioner in the past, and it is conceded that there was nothing, other than apparent nervous ness on the day in question, to suggest that she would be introducing contraband by way of drugs or otherwise on this occasion. The fact that there is a list of prisoners who are under suspicion and whose visitors are regularly searched and that the petitioner's name did not appear on it is significant only in a negative sense. Certainly the list is not exclusive nor would its existence prevent search of visitors of other prisoners. No doubt the names on the list have to be changed and updated from time to time. However, the absence of his name from such a list indicates that it could not be as a result of any suspicion of him that a search of Mrs. Allard was ordered on this occasion.
A subsequent investigation merely backed up and supported the on the spot decision, as might be expected, unless the authorities were prepared to concede that the amended Regulation now permits spot checks or checks on flimsy grounds of suspi cion. However, the fact that the petitioner was not called upon to be heard during this internal inves tigation does not cause any difficulty. He was not present when the incident took place and could contribute nothing to add to the full representa tions made by him and his attorney in writing. The investigation was an administrative procedure.
I would go so far as to say that if the original order for a body search was justified, and therefore the refusal to submit to same unjustified, then the
suspension of visitation periods for three months thereafter would not be unreasonable. If a visitor is justifiably suspected of introducing contraband then a refusal to be searched in order for the suspicion to be verified or disproved would itself be suspicious and would certainly add to the original grounds for suspicion, justifying the refusal to permit the visitor to be admitted for a three-month period thereafter before the refusal of admission is reviewed. The case must therefore turn on whether the original demand for search was justifiable under the Regulations.
In the present case, unlike the second Gunn action before Cattanach J., there is no conflict between the Directives and the Regulations. The amended Directive in fact carefully follows the wording of the Regulation, using the words "rea- son to believe" as in the amended Regulation.
One can readily accept, as pointed out in the affidavit of Mr. Jean-Marc Lavoie on behalf of the respondents, that there has been a drug problem at the Leclerc Institution, notwithstanding the steps that have been taken to prevent their introduction. It was explained by counsel during the hearing that visitors are not separated by any partition from the prisoner they are visiting, nor are they in a separate room with the prisoner and 'a guard; instead visitation takes place in a room in which a number of prisoners may be receiving visitors at the same time with a guard above the room over seeing these visits. Under these conditions it is not impossible that a visitor who might quite naturally be touching hands with the prisoner or perhaps embracing could have an opportunity of delivering contrabrand without attracting the guard's atten tion. There are 478 prisoners in the Institution and the problems of the penitentiary service in main taining order in it are substantial. Nevertheless, the Regulations and Directives resulting from them, which in this case do not conflict with the Regulation 41(2) must be scrupulously observed and the rights of search cannot exceed those pro vided for therein.
Some discussion took place as to whether visita tion is a right or a privilege and also as to whether certiorari is a proper remedy and whether it can be applied.
In the case of In re Penitentiary Act and in re Culhane, an unreported judgment of the Trial Division dated October 6, 1977, bearing No. T-2168-77, it was held that [at pages 3-5]:
... there is no statutory right, specifically permitting a member of the public to visit an institution and its inmates .... If there are any vested rights or "privileges" expressed or implied in the legislation, in respect of visiting ... those privileges are those of the individual inmates and not those of members of the public at large.... a decision, on security grounds, directing that a certain member or members of the public shall not be permit ted to visit the prison, or inmates in it, is an administrative decision which in its very nature does not require the so-called notice of the matters charged or alleged ... nor the right to a so-called hearing. Nor does it warrant interference by this Court, by way of certiorari or other prohibitive remedy, where it is merely asserted the decision was arbitrary, unreasonable or unfair.
This decision is authority for the proposition that the right or privilege of visitation is one pertaining to the prisoner himself and not to the visitor so that the present proceedings were proper ly brought in the name of the prisoner, Bryntwick. While the decision was undoubtedly an adminis trative one which, as the judgment points out, would not warrant interference by a court by way of certiorari, the judgment so concludes on the basis that the decision was not arbitrary, unreason able or unfair. In the present case it is the petition er's contention that the Regulations were not com plied with, not merely that the decision was arbitrary, unreasonable or unfair.
The petitioner contends that visitation of prison ers is a "right" and not merely a "privilege" and refers to a handbook issued to prisoners by the Correctional Service of Canada entitled "Inmate Rights and Responsibilities". The contents of the pamphlet are intended for information only and are not of course a substitute for the law and regulations. Under the heading "Programs Gener ally", paragraph 11(f) states:
The visiting and correspondence privileges that may, in accord ance with directives, be permitted to inmates shall be such as are, in all the circumstances, calculated to assist in the reforma tion and rehabilitation of the inmate.
It is interesting to note that although the pamphlet refers to "Inmate Rights and Responsibilities" this paragraph refers to visiting "privileges". An American authority to which the Court was referred dealing with a somewhat similar issue is
that of State of Hawaii v. Martinez, in the Supreme Court of Hawaii 4 in which the appellant had been convicted of possession of marijuana on the basis of evidence obtained when she was searched by prison officials as a condition of entry to the prison. The appeal challenged on constitu tional grounds the admissibility of the evidence obtained by the search. The matron who had made the search testified that although she had noticed signs of drug intoxication in the appellant's appearance and behaviour, her decision to subject the appellant to a strip search was non-discretion ary and was based on the rules and regulations of the prison. The Court found, however, no such rule of the prison. The judgment stated in part at page 1286:
We consider that a fundamental difference exists between the detention and search of an individual engaged in the exercise of a constitutional or statutory right, such as travel on city streets or across the border, and search without detention imposed as a condition of admission of the individual into a prison. In the first case, the liberty interest and expectation of privacy of the individual are substantially unaffected by the activity engaged in, and the burden is heavy upon government to justify the invasion. But appellant has not suggested that she possessed a constitutional or statutory right to enter the prison. The implication is strong from the record that she applied for entry with awareness that she would be routinely subjected to a strip search. To have avoided the search appellant need only have refrained from seeking admission, a situation far different from being, in the course of otherwise lawful travel, intercepted and forced to undergo search as a condition to continuing that travel.
Later on the same page we find the statement:
Without suggesting that the constitutional protections of prison visitors may not exceed those enjoyed by prison inmates, we consider that an individual who seeks entry into a prison in a purely personal capacity may not claim immunity from security measures which are reasonable as applied to the prison inmates.
Reference was also made to the headnote on page 1282, which read in part:
... where visitor who applied for admission to prison was aware of practice of strip search from prior admissions, consent to strip search would be implied ....
Individual who seeks entry into a prison in purely personal capacity may not claim immunity from security measures which are reasonable as applied to prison inmates.
4 580 P.2d 1282 (Sup. Ct. Hawaii 1978).
This case is not directly in point however since the visitor, Mrs. Allard, was certainly not aware of any practice whereby she would be subjected to a strip search prior to admission from which her consent to such a search could be implied when she sought admission. Moreover these cases do not apparently deal specifically with interpretation or applicability of specific prison regulations formu lated for visitors.
Extensive reference was made to the leading Canadian case of Martineau v. Matsqui Institu tion Disciplinary Board.' While it dealt with con finement to the Penitentiary Special Corrections Unit as a result of a flagrant and serious discipli nary offence, which is a more serious matter than a demand that a visitor submit to a strip search, some of the same principles apply, specifically the use of a writ of certiorari in the Trial Division in this Court as an appropriate remedy. My brother, Mahoney J., in the Trial Division had found that the Court had jurisdiction to quash the order by certiorari if it was of the view that the tribunal had not acted fairly, although on the preliminary point of law relating to jurisdiction before him he did not have to decide whether, on the facts of the case, the respondent had acted in an unfair manner. This was reversed by the Court of Appeal which had already, on a section 28 application which was upheld in the Supreme Court 6 found that it had no jurisdiction to set aside the order, on the ground that the convictions were administra tive decisions not required to be made on a judicial or quasi-judicial basis. The judgment in the appeal conluded that the convictions in question could, therefore, not be attacked under section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, by a writ of certiorari.
The Supreme Court after a very complete review of existing jurisprudence including its own decision in the case of Nicholson v. Haldimand- Norfolk Regional Board of Commissioners of Police' which established the duty to act fairly as being more extensive than applying rules of natu-
5 [1980] 1 S.C.R. 602.
6 Martineau et al. v. The Matsqui Institution Inmate Disci
plinary Board, [1978] 1 S.C.R. 118.
7 [ 1979] 1 S.C.R. 311.
ral justice, found that procedural fairness extends well beyond making a distinction between adminis trative and judicial and quasi-judicial functions so that it is possible to extend the ambit of certiorari to decisions not strictly judicial or quasi-judicial. The judgment of Dickson J., at page 628, states:
It seems clear that although the courts will not readily interfere in the exercise of disciplinary powers, whether within the armed services, the police force or the penitentiary, there is no rule of law which necessarily exempts the exercise of such disciplinary powers from review by certiorari.
At pages 629-630 he states:
4. An inmate disciplinary board is not a court. It is a tribunal which has to decide rights after hearing evidence. Even though the board is not obliged, in discharging what is essentially an administrative task, to conduct a judicial proceeding, observing the procedural and evidential rules of a court of law, it is, nonetheless, subject to a duty of fairness and a person aggrieved through breach of that duty is entitled to seek relief from the Federal Court, Trial Division, on an application for certiorari.
In the present case we are not of course concerned with a formal decision by a prison disciplinary board but only an on the spot decision by the matron who ordered the strip search, which was later supported by an informal administrative investigation by the prison authorities. The same duty of fairness would seem to apply however. This appears from the next paragraph of the judgment on page 630 which reads as follows:
5. It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.
It appears to me that in the present case whether the petitioner's visitations by his common law wife are considered as a right or a privilege, she was unfairly asked to subject herself to the indignity of a strip search based on reasons which, to say the least, are very unsubstantial and which were not
even communicated to her, and that, moreover, singling her out on this occasion for such a search was in contravention of subsection 41(2) of the Penitentiary Service Regulations, as amended, and the Directives issued by virtue thereof, as there was no legitimate "reason to believe" that she had contraband in her possession. I further find that certiorari is the proper remedy in the circum stances and therefore maintain the petition with costs and set aside and annul the order issued to suspend indefinitely the visits of Mrs. Francine Allard to her common law husband, the petitioner Paul Thomas Bryntwick and that permission to resume such visits be re-established without delay.
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